Testamentary Capacity – Updated in Leonard v Leonard (2024)

A Will can be challenged and set aside if it can be shown that the deceased lacked ‘testamentary capacity’.

Banks v Goodfellow (1870)

The relevant legal test for establishing (testamentary) capacity was laid first down in the case of Banks v Goodfellow (1870) which provided a 4 limb test:

a) Did the deceased understand that they were making a will and the effects
b) Did the deceased understand the nature and extent of their estate being disposed of
c) Did the deceased understand as to those who would have claims on the estate
d) Was the deceased impaired by any disorder of the mind or delusions

This is contrast to capacity for living persons

The Mental Health Act 2005

The Mental Health Act 2005 (“MCA”) came into force on 1 April 2007

The MCA test for capacity is:

An inability to make a decision for themself which is based on whether they can

i) Understand information relevant to the decision,
ii) Retain that information,
iii) Use or weigh that information as part of the process of making the decision,
iv) Communicate their decision

There was uncertainty around whether the MCA should also be adopted as the test on capacity for deceased persons.

The difference between the two tests are primarily:

– Burden of proof
– Degree of understanding of relevant information
– Degree of understanding of (reasonably foreseeable) consequences

The MCA goes further than the Banks test and if adopted may well mean that capacity is not established in some cases and scenarios.

The conflict between the two tests have come to a head in a number of cases including Clitheroe v Bond (2021) and Baker v Hewston (2023)

The court has hopefully now settled the matter in the recent case of Leonard v Leonard (2024) which upheld that the correct test for testamentary capacity remained Banks v Goodfellow

The Facts

Dr Jack Leonard, the deceased, married Audrey in 1958. They had four children – Jonathan, Andrew, Sara and Megan (the Claimants). Audrey sadly passed away in 1998 from terminal cancer. Her estate of about £1,700,000 went to Jack.

Jack married his second wife, Margaret, in 1999.

Margaret had two children from a previous marriage, Mark and Elizabeth. Margaret also had three grandchildren from another child (Melanie) who has predeceased – Charlotte, Michael and Melissa. Margaret and her children/grandchildren are 6 of the 7 Defendants.

The dispute involved two wills made in 2007 (prepared by solicitors) and 2015 (prepared by chartered tax advisor).

The 2007 will made provision for Jack’s residual estate to be divided in 5 equal shares between Jack’s children and Margaret

The 2015 will now included provision for a life interest in the residual estate for Margaret but subsequent division to provide for Jack’s children (4/7) and Margaret’s children/grandchildren (3/7)

Jack’s estate was worth about £5,400,000

By the time the matter came to court Margaret did not have capacity to assist the court.

The Second Defendant is the company appointed as one of the executors under Jack’s 2015 will

The Trial

Evidence was considered from a number of sources including

• Two experts (Dr James Warner for the Claimants and Dr Hugh Series for the Defendants)
• 25 witnesses
• Written Hearsay evidence from witnesses
• The will file
• Barclays files (in relation to Jack’s investments)
• Jack’s medical notes and reports from his treating consultants (Professor Hawkes and Dr Fuller)

The experts agreed that by 2015 Jack was suffering from dementia, probably mixed Alzheimer’s and vascular dementia. But there had differing views on the likely severity of Jack’s executive dysfunction due to the different approach and emphasis they had in relation to the available evidence and the weight and conclusions that the court would draw.

The court went lengths again to explain the Banks v Goodfellow test and that the relevant question in this case

“was Jack suffering from a disorder of the mind which poisoned his affections, perverted his sense of right or prevented the exercise of his natural faculties thereby causing him to bring about a disposal of his property which, if his mind had been sound, would not have been made?

The judge painstaking recreated the events based on the evidence available and concluded that Jack did not have capacity to execute the later 2015 will

The case is also a good illustration of the limitations of expert evidence

“They have based their opinions upon their individual reading of the facts without knowing what findings the court will ultimately make. Those opinions are not ultimately determinative of testamentary capacity”

the criteria in Banks v Goodfellow are not matters that are directly medical questions, but are matters for common sense judicial judgment depending, as they do, upon an analysis of the entirety of the evidence, including, importantly, the complexity of the relevant will

Ultimately it is for the court and not an expert witness to determine what, if any, inferences should be drawn from the documentary and other evidence when seen in its proper context

Concluding Comments

The court criticised the conduct of the tax advisor (who was employed by a law firm) in the taking of instructions and execution of the will with inappropriate regard to capacity issues.

“more difficult to challenge the validity of a properly executed will that “has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will” than it is to challenge the validity of a will “where those prudent procedures have not been followed

The court also expressed dissatisfaction that the parties could not resolve the claim without a trial – Parties to cases of this sort should be under no illusions as to the emotional and financial toll they extract and the considerable ordeal for both sides of contesting the matter to a final judgment.”

This reinforces what litigators in this area should be advising clients

a) Wills should be drafted by appropriately qualified solicitors
b) Litigation should be avoided and be the last resort – mediation should be encouraged at all stages

Finally, whilst Banks v Goodfellow remains good law, in 2017 the Law Commission had recommended that the Banks v Goodfellow test be replaced by the test under the MCA, or alternatively put on a statutory footing, but this has yet to be considered by parliament.

If you are involved in a Will dispute or have concerns about testamentary capacity, our experts can help. The test set by Banks v Goodfellow (1870) remains the standard for assessing capacity, as reaffirmed in Leonard v Leonard (2024). Contact our dispute resolution team for guidance. Call 0330 822 3451 or request a callback.